UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
JUAN OSTEGUIN,
v.

Plaintiff - Appellant,

No. 96-1473

SOUTHERN PACIFIC
TRANSPORTATION COMPANY,
a corporation,
Defendant - Appellee.
ORDER
Filed May 21, 1998

Before ANDERSON, LOGAN, and MURPHY, Circuit Judges.

Appellees motion to publish the order and judgment filed on February 11,
1998, is granted. The published opinion is attached to this order.

Entered for the Court

Patrick Fisher
Clerk

F I L E D

United States Court of Appeals

Tenth Circuit

PUBLISH

FEB 11 1998

UNITED STATES COURT OF APPEALS

PATRICK FISHER

TENTH CIRCUIT

Clerk

JUAN OSTEGUIN,
v.

Plaintiff - Appellant,

SOUTHERN PACIFIC
TRANSPORTATION COMPANY,
a corporation,

No. 96-1473

Defendant - Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 95-WY-617-AJ)
Norman R. Mueller, Haddon, Morgan & Foreman, P.C., Denver, Colorado
(Rachel A. Bellis, Haddon, Morgan & Foreman, P.C., Denver, Colorado, and
Marc J. Kaplan, Rossi, Cox, Kiker & Inderwish, P.C., Aurora, Colorado, with him
on the briefs), for Appellant.
Steven E. Napper (Robert N. Belt with him on the briefs), Southern Pacific
Transportation Company, Denver, Colorado, for Appellee.
Before ANDERSON, LOGAN, and MURPHY, Circuit Judges.
ANDERSON, Circuit Judge.

Juan Osteguin, a railroad worker employed by Southern Pacific

Transportation Company (the railroad), appeals from the district courts order
denying him a new trial on his claims against the railroad under the Federal
Employers Liability Act (the Act), 45 U.S.C. 51-60, for injuries he suffered
in two separate incidents while an employee of the railroad. We affirm.

BACKGROUND
On April 3, 1992, Osteguin was working as a laborer in the railroads
Denver repair facility, cleaning the decks of locomotives after the engine had
been removed. To clean the deck, 1 Osteguin would step down into it, shovel
debris and sludge into buckets, and carry the waste to a dumpster; then, he would
wash the deck with hot pressurized water using a hotsy, a manually-operated
wand much like that used in a self-service car wash. While using a hotsy and
wearing only leather work boots rather than rubber boots or booties, Osteguin
severely burned his left foot. 2 Osteguin asserts that he reacted to this injury by
jerking backwards and thus injured his back as well.
The deck of the locomotive is essentially the oil pan, and is sometimes referred
to as a sump or plate. Appellees Answer Br. at 2 & n.1.
1

At trial, Osteguin testified that he did not remember how he burned his foot, but
that it is impossible to wash the deck without getting water on your feet. Trial Tr. Vol. I,
Tab 3 at 6-7, 15-16. Pablo Mascarenas, the chairman of Osteguins local union, testified
in his deposition that Osteguin told him he was washing a part and got distracted, and the
wand came right over his boot. Trial Tr. Vol. II, Tab 16 at 8, 12.
2

-2-

After a recovery period, Osteguin was cleared for light duty and returned to
work. Because no light duty was available at the repair facility, he returned to his
job as a laborer. Then, on November 16, 1993, Osteguin suffered a second injury,
again while cleaning the deck of a locomotive but this time wearing rubber boots.
As he attempted to unclog the decks drain prior to washing the deck, Osteguin
slipped and fell, re-injuring his back. Although he returned to work for a short
period after the accident, Osteguin now asserts that his medical condition
prevents him from continuing in his job as a laborer.
Mr. Osteguin brought an action against the railroad under the Act, asserting
that the railroad negligently caused the 1992 injury by failing to provide him with
protective footwear such as rubber boots or booties, 3 and negligently caused the
1993 injury by failing to provide reasonably safe working conditions for the job
of washing the locomotive deck. In response, the railroad raised the affirmative
defense of contributory negligence and argued that Osteguins own inattention
caused his 1992 injury. As to the 1993 injury, the railroad admitted that the job
of cleaning the locomotive deck was dangerous but asserted there was no better
way to perform the job, and alleged that Osteguins own inattention and failure to
work in a careful manner caused the injury.
Although the railroad did provide rubber booties to employees cleaning the
locomotive decks, Osteguin asserts that none would fit over his size 12 boots.
Appellants Br. at 5, 28.
3

-3-

The case was tried to a jury, and, at the close of all evidence, Osteguin
moved for judgment as a matter of law on the affirmative defense of contributory
negligence as to the 1993 incident and also objected to the jury being instructed
on that defense as to the 1993 injury, arguing that the railroad had provided
insufficient evidence to justify submitting the issue to the jury. The district court
denied the motion and overruled Osteguins objection. The court also rejected
Osteguins proposed jury instructions regarding assumption of the risk and
negligent job assignment.
Thereafter, the jury returned a verdict on a special verdict form, a copy of
which is attached hereto. The jury found that the railroad was not negligent in
either the 1992 or the 1993 incident, and answered no questions on the verdict
form concerning causation or contributory negligence. After the jury returned its
verdict, Osteguin moved for a new trial pursuant to Fed. R. Civ. P. 59, which the
district court denied in September 1996. Osteguin filed a timely notice of appeal.
On appeal, Osteguin asserts that the district court committed reversible
error in (1) instructing the jury on the issue of contributory negligence as to the
1993 incident; (2) refusing Osteguins tendered instruction that assumption of risk
is not a defense in FELA cases; (3) admitting the hearsay opinion of a
nontestifying witness in the guise of expert testimony regarding the interpretation
of MRI films of Osteguins injury; and (4) refusing Osteguins tendered
-4-

instruction that the railroad knew or should have known that its work assignment
of Osteguin exposed him to an unreasonable risk of harm.

DISCUSSION
The district courts decision on a new trial motion is reviewed under an
abuse of discretion standard. Weese v. Schukman, 98 F.3d 542, 549 (10th Cir.
1996) (noting, however, that when the district courts decision [on a new trial
motion] turns on an issue of law, we review the district courts determination on
that question de novo). We review decisions to admit or exclude evidence for
abuse of discretion. K-B Trucking Co. v. Riss Intl Corp., 763 F.2d 1148, 1155
(10th Cir. 1985). We also review a district courts decision to give a particular
jury instruction for abuse of discretion, United States v. Wolny, 133 F.3d 758,
765 (10th Cir. 1998); ultimately, however, we apply a de novo standard of review
to determine the propriety of an individual jury instruction to which objection was
made at time of trial. United States v. Scarborough, 128 F.3d 1373, 1377 (10th
Cir. 1997).
We are unpersuaded by Osteguins first three arguments. The jury
specifically found that the railroad was not negligent; thus, even if one were to
assume that the district court erred in instructing the jury as to contributory
negligence, in rejecting Osteguins tendered instruction regarding assumption of
-5-

the risk, or in admitting the MRI testimony, Osteguin has suffered no

prejudicehence, these three alleged errors are harmless. 4 See United States v.
Harmon, 996 F.2d 256, 258 (10th Cir. 1993) (An erroneous jury instruction
requires reversal only if, after review of the record as a whole, we determine the
error to have been prejudicial. (quotation omitted)); K-B Trucking Co., 763 F.2d
at 1156 (stating that even if the district court abuses its discretion by erroneously
admitting particular evidence, the error is harmless if it does not prejudicially
affect a substantial right of the party asserting error); see also Fed. R. Civ. P. 61.
Similarly, Osteguins last argument, that the court erroneously rejected his
tendered jury instruction that the railroad knew or should have known its work
assignment of Osteguin exposed him to an unreasonable risk of harm, fails.
Osteguin argues that the railroad negligently assigned him to work in both the
1992 and the 1993 incidents. Appellants Br. at 28-29. First, as to the 1992
incident, Osteguin asserts that it was negligent for the railroad to assign him the
job of cleaning the locomotive deck without providing him protective footwear.
Because the special verdict form was divided into clearly articulated subparts,
there is no reason to question the common sense assumption that the jury proceeded
logically to answer the questions in order, following the judges instruction. See United
States v. Hatatley, 130 F.3d 1399, 1405 (10th Cir. 1997) (When reviewing a challenge to
jury instructions, we consider the instructions as a whole and presume the jury followed
those instructions.). Osteguins assertion that the jury could not accurately answer the
question of the railroads negligence because it was confused by the inclusion of
inappropriate instructions is not supported by any authority directly on point. See
Appellants Br. at 15-16.
4

-6-

Id. It is clear, however, that Osteguin suffered no prejudice by the courts

rejection of his tendered instruction. In order to find that the railroad
unreasonably assigned him this job without rubber boots or booties, the jury
would have had to first find that it was unreasonable not to provide protective
footwear for this job. The jury squarely rejected this argument when it found the
railroad not negligent. See Appellants App. at 35, 43, 87-88.
Second, as to the 1993 incident, Osteguin argues that the railroad
negligently assigned him to return to work on the deck despite his injured back.
Appellants Br. at 29. Osteguin failed to raise this issue at trial, however, see
Appellants App. at 322, and therefore, we decline to address the issue on appeal.
See Walker v. Mather (In re Walker), 959 F.2d 894, 896 (10th Cir. 1992); Fed. R.
Civ. P. 51.
AFFIRMED.

-7-

SPECIAL VERDICT
We the jury duly empaneled and sworn to try the above entitled case
unanimously find as follows:
APRIL 3, 1992, OCCURRENCE
QUESTION NO. 1: On or about April 3, 1992, was Southern Pacific
Transportation negligent in one or more of the particulars alleged by the
plaintiff, Juan Osteguin?
No
_____________ Yes
X
If you have answered No to Question No. 1, go to Question No. 7. If you
have answered Yes to Question No. 1, please proceed to Question No. 2.
QUESTION NO. 2: Did the negligence of Southern Pacific
Transportation cause or contribute to injury or damage to Juan Osteguin?
____________ Yes
____________ No
If you have answered No to Question No. 2, go to Question No. 7. If you
have answered Yes to Question No. 2, please proceed to Question No. 3.
QUESTION NO. 3: On April 3, 1992, was the plaintiff Juan
Osteguin contributorily negligent?
___________ Yes
____________ No
If you have answered No to Question No. 3 and Yes to Question Nos. 1
and 2, please proceed to Question No. 6. If you have answered Yes to Question
3, please proceed to Question No. 4.
QUESTION NO. 4: Did the contributory negligence of Juan
Osteguin cause or contribute to injury or damage to him?
___________ Yes
____________ No

If you have answered No to Question No. 4, go to Question No. 6. If you

have answered Yes to Question No. 4, please proceed to answer Question No. 5.
QUESTION NO. 5: Taking as 100% the combined negligence of all
parties you find were negligent on April 3, 1992, and whose negligence was
a cause of any of the plaintiffs injuries, damages or losses, what
percentage of negligence for the occurrence on April 3, 1992, if any, was
that of the defendant, Southern Pacific Transportation, and of the plaintiff,
Juan Osteguin?
ANSWER:
Percentage attributable to Southern Pacific

_______%

Percentage attributable to Juan Osteguin

_______%

Must total

100%

Please proceed to the next question.

QUESTION NO. 6: What amount, if any, do you find without any
reduction for negligence, if any, on the part of Juan Osteguin will fairly and
adequately compensate Juan Osteguin for any injury or damages he
received in the occurrence on April 13, 1992? *
$ ___________________
Please proceed to Question No. 7.
NOVEMBER 16, 1993, OCCURRENCE
QUESTION NO. 7: On November 16, 1993, was defendant Southern
Pacific Transportation negligent in one or more of the particulars alleged
by the plaintiff, Juan Osteguin?
_____________ Yes
X
No

Mistaken date in original.

If you have answered No to Question No. 7, please sign the Special

Verdict and announce to the bailiff that you have reached a verdict. If you have
answered Yes to Question No. 7, please proceed to Question No. 8.
QUESTION NO. 8: Did the negligence of defendant Southern
Pacific Transportation cause or contribute to injury or damage to plaintiff
Juan Osteguin?
____________ Yes
____________ No
If you have answered No to Question No. 8, please sign the Special
Verdict and announce to the bailiff that you have reached a verdict. If you have
answered Yes to Question No. 8, please proceed to Question No. 9.
QUESTION NO. 9: On November 16, 1993, was the plaintiff Juan
Osteguin contributorily negligent?
___________ Yes
____________ No
If you have answered No to Question No. 9 and Yes to Question Nos. 7
and 8, please proceed to Question No. 12. If you have answered Yes to
Question No. 9, please proceed to Question No. 10.
QUESTION 10 **: Did the contributory negligence of Juan
Osteguin cause or contribute to injury or damage to him?
___________ Yes
____________ No
If you have answered No to Question No. 10 and Yes to Questions 7 &
8, please proceed to Question No. 12. If you have answered Yes to Question
No. 10, please proceed to answer Question No. 11.
QUESTION NO. 11: Taking as 100% the combined negligence of all
parties you find were negligent on November 16, 1993 and whose
No. omitted in original.

**

negligence was a cause of any of the plaintiffs injuries, damages or losses,

if any, what percentage of negligence, if any, was that of the defendant
Southern Pacific Transportation and of the plaintiff Juan Osteguin?
ANSWER:
Percentage charged to Southern Transportation

_______%

Percentage charged to Juan Osteguin

_______%

Must Total

100%

Please proceed to the next question.

QUESTION NO. 12: What amount do you find without reduction for
negligence, if any, on the part of the plaintiff, will fairly and adequately
compensate Juan Osteguin for any injury or damages he received in the
occurrence on November 16, 1993?
$ ___________________
Appellants App. at 87-90.

F I L E D

United States Court of Appeals

Tenth Circuit

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

FEB 11 1998

PATRICK FISHER
Clerk

JUAN OSTEGUIN,
v.

Plaintiff - Appellant,

SOUTHERN PACIFIC
TRANSPORTATION COMPANY, a
corporation,

No. 96-1473

(D. Colorado)

(D.C. No. 95-WY-617-AJ)

Defendant - Appellee.
ORDER AND JUDGMENT *
Before ANDERSON, LOGAN, and MURPHY, Circuit Judges.

Juan Osteguin, a railroad worker employed by Southern Pacific

Transportation Company (the railroad), appeals from the district courts order
denying him a new trial on his claims against the railroad under the Federal
Employers Liability Act (the Act), 45 U.S.C. 51-60, for injuries he suffered
in two separate incidents while an employee of the railroad. We affirm.
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
*

BACKGROUND
On April 3, 1992, Osteguin was working as a laborer in the railroads
Denver repair facility, cleaning the decks of locomotives after the engine had
been removed. To clean the deck, 1 Osteguin would step down into it, shovel
debris and sludge into buckets, and carry the waste to a dumpster; then, he would
wash the deck with hot pressurized water using a hotsy, a manually-operated
wand much like that used in a self-service car wash. While using a hotsy and
wearing only leather work boots rather than rubber boots or booties, Osteguin
severely burned his left foot. 2 Osteguin asserts that he reacted to this injury by
jerking backwards and thus injured his back as well.
After a recovery period, Osteguin was cleared for light duty and returned to
work. Because no light duty was available at the repair facility, he returned to his
job as a laborer. Then, on November 16, 1993, Osteguin suffered a second injury,
again while cleaning the deck of a locomotive but this time wearing rubber boots.
As he attempted to unclog the decks drain prior to washing the deck, Osteguin
slipped and fell, re-injuring his back. Although he returned to work for a short
The deck of the locomotive is essentially the oil pan, and is sometimes referred
to as a sump or plate. Appellees Answer Br. at 2 & n.1.
1

At trial, Osteguin testified that he did not remember how he burned his foot, but
that it is impossible to wash the deck without getting water on your feet. Trial Tr. Vol. I,
Tab 3 at 6-7, 15-16. Pablo Mascarenas, the chairman of Osteguins local union, testified
in his deposition that Osteguin told him he was washing a part and got distracted, and the
wand came right over his boot. Trial Tr. Vol. II, Tab 16 at 8, 12.
2

-2-

period after the accident, Osteguin now asserts that his medical condition
prevents him from continuing in his job as a laborer.
Mr. Osteguin brought an action against the railroad under the Act, asserting
that the railroad negligently caused the 1992 injury by failing to provide him with
protective footwear such as rubber boots or booties, 3 and negligently caused the
1993 injury by failing to provide reasonably safe working conditions for the job
of washing the locomotive deck. In response, the railroad raised the affirmative
defense of contributory negligence and argued that Osteguins own inattention
caused his 1992 injury. As to the 1993 injury, the railroad admitted that the job
of cleaning the locomotive deck was dangerous but asserted there was no better
way to perform the job, and alleged that Osteguins own inattention and failure to
work in a careful manner caused the injury.
The case was tried to a jury, and, at the close of all evidence, Osteguin
moved for judgment as a matter of law on the affirmative defense of contributory
negligence as to the 1993 incident and objected to the jury being instructed on
that defense as to the 1993 injury, arguing that the railroad had provided
insufficient evidence to justify submitting the issue to the jury. The district court
denied the motion and overruled Osteguins objection. The court also rejected
Although the railroad did provide rubber booties to employees cleaning the
locomotive decks, Osteguin asserts that none would fit over his size 12 boots.
Appellants Br. at 5, 28.
3

-3-

Osteguins proposed jury instructions regarding assumption of the risk and

negligent job assignment.
Thereafter, the jury returned a verdict on a special verdict form, a copy of
which is attached hereto. The jury found that the railroad was not negligent in
either the 1992 or the 1993 incident, and answered no questions on the verdict
form concerning causation or contributory negligence. After the jury returned its
verdict, Osteguin moved for a new trial pursuant to Fed. R. Civ. P. 59, which the
district court denied in September 1996. Osteguin filed a timely notice of appeal.
On appeal, Osteguin asserts that the district court committed reversible
error in (1) instructing the jury on the issue of contributory negligence as to the
1993 incident; (2) refusing Osteguins tendered instruction that assumption of risk
is not a defense in FELA cases; (3) admitting the hearsay opinion of a
nontestifying witness in the guise of expert testimony regarding the interpretation
of MRI films of Osteguins injury; and (4) refusing Osteguins tendered
instruction that the railroad knew or should have known that its work assignment
of Osteguin exposed him to an unreasonable risk of harm.
DISCUSSION
The district courts decision on a new trial motion is reviewed under an
abuse of discretion standard. Weese v. Schukman, 98 F.3d 542, 549 (10th Cir.
1996) (noting, however, that when the district courts decision [on a new trial
-4-

motion] turns on an issue of law, we review the district courts determination on

that question de novo). We review decisions to admit or exclude evidence for
abuse of discretion. K-B Trucking Co. v. Riss Intl Corp., 763 F.2d 1148, 1155
(10th Cir. 1985). We also review a district courts decision to give a particular
jury instruction for abuse of discretion, United States v. Wolny, ___ F.3d ___,
No. 96-4169, 1998 WL 2480, at *8 (10th Cir. Jan. 6, 1998); ultimately, however,
we apply a de novo standard of review to determine the propriety of an individual
jury instruction to which objection was made at time of trial. United States v.
Scarborough, 128 F.3d 1373, 1377 (10th Cir. 1997).
We are unpersuaded by Osteguins first three arguments. The jury
specifically found that the railroad was not negligent; thus, even if one were to
assume that the district court erred in instructing the jury as to contributory
negligence, in rejecting Osteguins tendered instruction regarding assumption of
the risk, or in admitting the MRI testimony, Osteguin has suffered no
prejudicehence, these three alleged errors are harmless. 4 See United States v.
Because the special verdict form was divided into clearly articulated subparts,
there is no reason to question the common sense assumption that the jury proceeded
logically to answer the questions in order, following the judges instruction. See United
States v. Hatatley, 130 F.3d 1399, 1405 (10th Cir. 1997) (When reviewing a challenge to
jury instructions, we consider the instructions as a whole and presume the jury followed
those instructions.). Osteguins assertion that the jury could not accurately answer the
question of the railroads negligence because it was confused by the inclusion of
inappropriate instructions is not supported by any authority directly on point. See
(continued...)
4

-5-

Harmon, 996 F.2d 256, 258 (10th Cir. 1993) (An erroneous jury instruction
requires reversal only if, after review of the record as a whole, we determine the
error to have been prejudicial.(quotation omitted)); K-B Trucking Co., 763 F.2d
at 1156 (stating that even if the district court abuses its discretion by erroneously
admitting particular evidence, the error is harmless if it does not prejudicially
affect a substantial right of the party asserting error); see also Fed. R. Civ. P. 61.
Similarly, Osteguins last argument, that the court erroneously rejected his
tendered jury instruction that the railroad knew or should have known its work
assignment of Osteguin exposed him to an unreasonable risk of harm, fails.
Osteguin argues that the railroad negligently assigned him to work in both the
1992 and the 1993 incidents. Appellants Br. at 28-29. First, as to the 1992
incident, Osteguin asserts that it was negligent for the railroad to assign him the
job of cleaning the locomotive deck without providing him protective footwear.
Id. It is clear, however, that Osteguin suffered no prejudice by the courts
rejection of his tendered instruction. In order to find that the railroad
unreasonably assigned him this job without rubber boots or booties, the jury
would have had to first find that it was unreasonable not to provide protective

(...continued)
Appellants Br. at 15-16.
4

-6-

footwear for this job. The jury squarely rejected this argument when it found the
railroad not negligent. See Appellants App. at 35, 43, 87-88.
Second, as to the 1993 incident, Osteguin argues that the railroad
negligently assigned him to return to work on the deck despite his injured back.
Appellants Br. at 29. Osteguin failed to raise this issue at trial, however, see
Appellants App. at 322, and therefore, we decline to address the issue on appeal.
See Walker v. Mather (In re Walker), 959 F.2d 894, 896 (10th Cir. 1992); Fed. R.
Civ. P. 51.
AFFIRMED.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge

-7-

SPECIAL VERDICT
We the jury duly empaneled and sworn to try the above entitled case
unanimously find as follows:
APRIL 3, 1992, OCCURRENCE
QUESTION NO. 1: On or about April 3, 1992, was Southern Pacific
Transportation negligent in one or more of the particulars alleged by the
plaintiff, Juan Osteguin?
No
_____________ Yes
X
If you have answered No to Question No. 1, go to Question No. 7. If you
have answered Yes to Question No. 1, please proceed to Question No. 2.
QUESTION NO. 2: Did the negligence of Southern Pacific
Transportation cause or contribute to injury or damage to Juan Osteguin?
____________ Yes
____________ No
If you have answered No to Question No. 2, go to Question No. 7. If you
have answered Yes to Question No. 2, please proceed to Question No. 3.
QUESTION NO. 3: On April 3, 1992, was the plaintiff Juan
Osteguin contributorily negligent?
___________ Yes
____________ No
If you have answered No to Question No. 3 and Yes to Question Nos. 1
and 2, please proceed to Question No. 6. If you have answered Yes to Question
3, please proceed to Question No. 4.
QUESTION NO. 4: Did the contributory negligence of Juan
Osteguin cause or contribute to injury or damage to him?
___________ Yes
____________ No

If you have answered No to Question No. 4, go to Question No. 6. If you

have answered Yes to Question No. 4, please proceed to answer Question No. 5.
QUESTION NO. 5: Taking as 100% the combined negligence of all
parties you find were negligent on April 3, 1992, and whose negligence was
a cause of any of the plaintiffs injuries, damages or losses, what
percentage of negligence for the occurrence on April 3, 1992, if any, was
that of the defendant, Southern Pacific Transportation, and of the plaintiff,
Juan Osteguin?
ANSWER:
Percentage attributable to Southern Pacific

_______%

Percentage attributable to Juan Osteguin

_______%

Must total

100%

Please proceed to the next question.

QUESTION NO. 6: What amount, if any, do you find without any
reduction for negligence, if any, on the part of Juan Osteguin will fairly and
adequately compensate Juan Osteguin for any injury or damages he
received in the occurrence on April 13, 1992? 5
$ ___________________
Please proceed to Question No. 7.
NOVEMBER 16, 1993, OCCURRENCE
QUESTION NO. 7: On November 16, 1993, was defendant Southern
Pacific Transportation negligent in one or more of the particulars alleged
by the plaintiff, Juan Osteguin?
_____________ Yes
X
No

Mistaken date in original.

If you have answered No to Question No. 7, please sign the Special

Verdict and announce to the bailiff that you have reached a verdict. If you have
answered Yes to Question No. 7, please proceed to Question No. 8.
QUESTION NO. 8: Did the negligence of defendant Southern
Pacific Transportation cause or contribute to injury or damage to plaintiff
Juan Osteguin?
____________ Yes
____________ No
If you have answered No to Question No. 8, please sign the Special
Verdict and announce to the bailiff that you have reached a verdict. If you have
answered Yes to Question No. 8, please proceed to Question No. 9.
QUESTION NO. 9: On November 16, 1993, was the plaintiff Juan
Osteguin contributorily negligent?
___________ Yes
____________ No
If you have answered No to Question No. 9 and Yes to Question Nos. 7
and 8, please proceed to Question No. 12. If you have answered Yes to
Question No. 9, please proceed to Question No. 10.
QUESTION 10: Did the contributory negligence of Juan Osteguin
cause or contribute to injury or damage to him?
___________ Yes
____________ No
If you have answered No to Question No. 10 and Yes to Questions 7 &
8, please proceed to Question No. 12. If you have answered Yes to Question
No. 10, please proceed to answer Question No. 11.
QUESTION NO. 11: Taking as 100% the combined negligence of all
parties you find were negligent on November 16, 1993 and whose
negligence was a cause of any of the plaintiffs injuries, damages or losses,
if any, what percentage of negligence, if any, was that of the defendant
Southern Pacific Transportation and of the plaintiff Juan Osteguin?

ANSWER:
Percentage charged to Southern Transportation

_______%

Percentage charged to Juan Osteguin

_______%

Must Total

100%

Please proceed to the next question.

QUESTION NO. 12: What amount do you find without reduction for
negligence, if any, on the part of the plaintiff, will fairly and adequately
compensate Juan Osteguin for any injury or damages he received in the
occurrence on November 16, 1993?
$ ___________________
Appellants App. at 87-90.